Citation Nr: 1039224
Decision Date: 10/20/10 Archive Date: 10/27/10
DOCKET NO. 09-28 508 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUE
Entitlement to service connection for right ear hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Barone, Counsel
INTRODUCTION
The Veteran served on active duty from August 1944 to September
1946.
This matter comes to the Board of Veterans' Appeals (Board) on
appeal from a December 2008 rating decision by a Regional Office
(RO) of the Department of Veterans Affairs (VA). A notice of
disagreement was received in December 2008, a statement of the
case was issued in June 2009, and a substantive appeal was
received in August 2009.
The Veteran presented testimony at a Board hearing in September
2010. A transcript of the hearing is associated with the
Veteran's claims folder.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDING OF FACT
The positive evidence is in a state of equipoise with the
negative evidence on the question of whether the Veteran's right
ear hearing loss is causally related to his active duty service.
CONCLUSION OF LAW
The Veteran's right ear hearing loss was incurred in the
Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. §§ 3.303, 3.385 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service Connection
The issue before the Board involves a claim of entitlement to
service connection. Applicable law provides that service
connection will be granted if it is shown that the Veteran
suffers from disability resulting from an injury suffered or
disease contracted in line of duty, or for aggravation of a
preexisting injury or disease in line of duty, in the active
military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R.
§ 3.303. That an injury occurred in service alone is not enough;
there must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Additionally, for Veterans who have served 90
days or more of active service during a war period or after
December 31, 1946, certain chronic disabilities, such as organic
diseases of the nervous system, are presumed to have been
incurred in service if manifest to a compensable degree within
one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112;
38 C.F.R. §§ 3.307, 3.309. Service connection may also be
granted for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes that
the disease was incurred in service. 38 C.F.R. § 3.303(d).
The Board notes that impaired hearing will be considered to be a
disability when the auditory threshold in any of the frequencies
500, 1000, 2000, 3000, or 4000 hertz is 40 decibels or greater;
or when the auditory thresholds for at least three of the
frequencies 500, 1000, 2000, 3000, or 4000 hertz are 26 decibels
or greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The Board notes that the lack of any evidence that the Veteran
exhibited hearing loss during service is not fatal to his claim.
The laws and regulations do not require in- service complaints of
or treatment for hearing loss in order to establish service
connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992).
As noted by the Court:
[W]here the regulatory threshold requirements for
hearing disability are not met until several years
after separation from service, the record must include
evidence of exposure to disease or injury in service
that would adversely affect the auditory system and
post- service test results meeting the criteria of 38
C.F.R. § 3.385 . . . . For example, if the record
shows (a) acoustic trauma due to significant noise
exposure in service and audiometric test results
reflecting an upward shift in tested thresholds in
service, though still not meeting the requirements for
disability under 38 C.F.R. § 3.385, and (b) post-
service audiometric testing produces findings meeting
the requirements of 38 C.F.R. § 3.385, rating
authorities must consider whether there is a medically
sound basis to attribute the post-service findings to
the injury in service, or whether they are more
properly attributable to intercurrent causes.
Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a
brief of the VA Secretary).
The Board preliminarily notes that there is no controversy in
this case with regard to whether the Veteran currently suffers
from hearing loss disability for VA purposes in the right ear.
The evidence, including a November 2008 VA examination report,
shows that the Veteran's right ear hearing loss meets the
criteria to be considered hearing loss disability for VA
purposes.
At the Veteran's September 2010 Board hearing, he testified that
he was an electronics officer and that he was exposed to
excessive noise in the form of forward 'five-inch' guns firing
shells from a ship out into the ocean during gun practice. The
Board notes that the Veteran's testimony is generally
corroborated by his service records and is consistent with
documented statements associated with treatment of his hearing
loss in March 1954. The Board also notes that service-connection
is already in effect for left ear hearing loss with apparent VA
acceptance that the Veteran was exposed to such significant
acoustic trauma during service.
The Veteran has stated, including in his May 2008 claim for VA
benefits, that his hearing loss became noticeable to him around
the time of the year 1953. He has also made statements to the
effect that the significant acoustic trauma during service
involved both of his ears, did not involve circumstances
featuring only his left ear, and that he may have had some onset
of hearing loss during service; such testimony is discussed
including in his September 2010 Board hearing testimony and his
December 2008 notice of disagreement. The Veteran's testimony
reflects his recollection of experiencing hearing loss since at
least as early as 1953, and perhaps since during his military
service; in any event his statements reflect that he recalls
problems with hearing in both ears manifesting at around the same
time as each other (that is, that his service-connected left ear
hearing loss did not significantly pre-date his right ear hearing
loss). The Board notes that the Veteran's documented medical
history does not show that right ear hearing complaints
accompanied his documented left ear hearing complaints in the
1950s, however neither does the documented medical history show
any suggestion that the Veteran denied having any diminished
hearing in the right ear when being evaluated for his significant
left ear hearing problems at that time.
The Veteran's service treatment records reflect that upon
separation from service, he did not undergo an audiometric
examination. Instead he underwent a spoken voice and whisper
test in April 1946; the results were normal.
The Veteran underwent a VA examination in November 2008. The
examiner reviewed the claims file in conjunction with the
examination. The Veteran complained of bilateral hearing loss .
The examiner noted that the Veteran reported noise exposure from
his military service, but described this only as noise exposure
resulting from duty as a radar officer without further detail.
Audiological testing revealed a moderate sloping to severe
sensorineural hearing loss in the right ear and a moderate
sloping to profound sensorineural hearing loss in the left ear.
The examiner concluded that the hearing loss in the left ear is
most likely caused by or a result of military noise exposure.
The report also originally stated, contradictorily, that the
hearing loss in the "left" ear was "as least like as not, less
than 50/50 probability, caused by or a result of military noise
exposure," however the examiner made a handwritten correction to
change this conclusion to apply to the "right" ear.
The examiner discussed a basis for this opinion by citing a March
1954 audiogram which "indicated a normal sloping to moderate
sensorineural hearing loss at 4000 Hertz in the left ear and
hearing within normal limits in the right ear." Additionally,
the examiner cited a May 1954 audiogram which the examiner found
shows hearing within normal limits in the right ear and a normal
sloping to moderate sensorineural hearing loss in the left ear.
The examiner commented that "[a] contributing factor to the
hearing loss in the right ear could be presbycusis." However,
the November 2008 VA examiner did not otherwise discuss any
explanation of the etiology of the right ear hearing loss beyond
this expressly speculative statement asserting that presbycusis
"could" be a "contributing factor" to the right ear hearing
loss.
The Veteran competently testified at his Board hearing that he
was exposed to acoustic trauma during service from "5 inch
guns," and following service has been employed as an electrical
equipment salesmen without significant occupational noise
exposure. The Board has reviewed the service treatment records,
but precise audiometric testing was not performed during the
Veteran's active duty military service; all watch, coin click,
whispered voice, and spoken voice testing of hearing was normal
bilaterally during service, including at separation. However, as
the Veteran is currently service-connected for left ear hearing
loss, the Board clearly must accept that in-service acoustic
trauma impacted the Veteran's long-term hearing acuity during
service despite the absence of noticeable hearing loss shown in
the in-service hearing testing.
Similar testing, lacking precise audiometrics, failed to reveal
any decreased hearing acuity in the right ear in a reserve
service examination report from October 1953. A May 1954 reserve
service examination report includes audiometric testing data.
Although the evidence, including the November 2008 VA examination
report, indicates that the right ear hearing acuity shown in this
May 1954 report was within normal limits, the Board notes that
the audiometric results are not clearly inconsistent with the
Veteran's claim. While the Veteran's right ear hearing acuity in
May 1954 may be shown to be within normal limits, in that it is
not diminished to the extent necessary to qualify as hearing loss
disability at that time, the Veteran's right ear auditory
thresholds in May 1954 do suggest the possibility of some
diminished hearing acuity at that time. The Veteran's hearing
thresholds in the right ear were, in fact, higher (reflecting
lesser hearing acuity) than the left ear hearing thresholds at
two of the documented frequencies. Also, considering the
necessary conversion of units, the Veteran's right ear
audiometric results in 1954 appear to reflect more significantly
diminished hearing acuity than is indicated without the necessary
conversion.
VA audiometric readings prior to June 30, 1966, and service
department audiometric readings prior to October 31, 1967, must
be converted from American Standards Association (ASA) units to
International Standard Organization (ISO) units. The May 1954
audiological evaluation of the Veteran indicated pure tone
thresholds, in decibels, as follows (with the converted ISO units
in parentheses):
HERTZ
250
500
1000
2000
4000
RIGHT
10 (25)
0 (15)
20 (30)
0 (10)
15 (20)
LEFT
6 (21)
8 (23)
9 (19)
20 (30)
54 (59)
The May 1954 report contains no speech recognition testing data.
The Board notes that the evidence in this case is insufficient to
provide a very clear picture determining the etiological history
of the Veteran's right ear hearing loss. The facts that appear
to be shown are that the Veteran's hearing acuity was not
symptomatically diminished during service, that the Veteran was
exposed to significant acoustic trauma during service, that
several years after service the Veteran's left ear manifested
symptomatic hearing loss at a time when the Veteran's right ear
hearing thresholds were higher at some frequencies and lower at
others, and that the Veteran's right ear hearing loss manifested
symptomatically some time thereafter. The Veteran's competent
and uncontradicted testimony indicates that he did not have any
significant post-service acoustic trauma. The November 2008 VA
examiner did not provide a persuasive discussion of any
alternative etiology, and merely indicated that presbycusis
'could' be a 'contributing factor.'
The RO has service connected the Veteran for left ear hearing
loss based on the Veteran's exposure to excessive noise in
service. The Board finds it reasonable to believe that if the
Veteran's left ear was exposed to excessive noise while he was in
service, then his right ear was similarly exposed. This appears
to be a case where the noise exposure was not from a rifle (which
might lead an examiner to find that one ear was positioned closer
to the rifle when firing). The Board believes the level of the
noise exposure in this case would be approximately the same for
both ears. It would therefore seem reasonable to find that if
such noise exposure is responsible for the Veteran's left ear
hearing loss, then such noise exposure may also be significantly
responsible for right ear hearing loss. The Board recognizes
that it is not competent to render medical opinions as to
causation. However, in reviewing the overall evidence in this
case, the Board believes that the positive evidence is at least
in a state of equipoise with the negative evidence on the
question of whether the Veteran's right ear hearing loss is
causally related to service. In such a case, applicable law
gives the benefit of the doubt to the Veteran. 38 U.S.C.A.
§ 5107(b). Service connection is therefore warranted for right
ear hearing loss.
In closing, there is no need to undertake any review of
compliance with the Veterans Claims Assistance Act of 2000 (VCAA)
and implementing regulations in this case since there is no
detriment to the veteran as a result of any VCAA deficiency in
view of the fact that the full benefit sought by the veteran is
being granted by this decision of the Board. See generally
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102,
3.156(a), 3.159 and 3.326(a). By letter dated in June 2008, the
Veteran was furnished notice of the manner of assigning a
disability evaluation and an effective date. He will have the
opportunity to initiate an appeal from these "downstream"
issues if he disagrees with the determinations which will be made
by the RO in giving effect to the Board's grant of service
connection.
ORDER
Service connection for right ear hearing loss is warranted. The
appeal is granted.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs